Dinesan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** ## **WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931** ## **CRL.A.No. 404 of 2003()** **---------------------------------SC.258/2000 of DISTRICT & SESSIONS COURT, KOZHIKODE.** **....................** ## **APPELLANT(S): ACCUSED:** **DINESAN, S/O. POKKAN, AGED 29 YEARS, MUKKOTH VEEDU, THANAKKOTTOR, KOZHIKODE DISTRICT (WITHIN THE JURISDICTION OF NADAPURAM POLICE STATION).** ## **BY ADV. MR.V.N.RAMESAN NAMBISAN** ## **RESPONDENT(S): COMPLAINANT:** ## **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/07/2009 , THE COURT ON TEHE SAME DAY DELIVERED THE** ## **ORDER ON CRL.MP. NO.2262/2003 IN CRA. NO.404/2003** ## **DISMISSED** **15/07/2009** **SD/- M.N.KRISHNAN, JUDGE** **TRUE COPY P.A.TO JUDGE** ## **TSS** **M.N. KRISHNAN, J. = = = = = = = = = = = = = = = Crl. Appeal NO. 404 OF 2003 = = = = = = = = = = = = = = = Dated this the 15[th] day of July, 2009.** ## **J U D G M E N T** This appeal is preferred against the conviction and sentence passed in S.C.258/00 of the Addl. District and Sessions Judge, Fast Track Court, Adhoc-II, Kozhikode. The accused was charge sheeted for the offence u/S. 55(a) of the Abkari Act and was convicted thereunder and was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for a period of six months. It is against that decision the accused has come up in appeal. 2. The points that arise for determination in the appeal are; (1) Whether the Court below was right in convicting the accused u/s 55(a) of the Act? (2) Whether the offence will come under any other Section? (3) In case of guilt whether the quantum of punishment is excessive? ## **Crl. Appeal NO. 404 OF 2003** -:2:- ## **Points:** 3. Heard the learned counsel for the appellant as well as the learned Public Prosecutor. It is the case of the prosecution that on 25.11.98 at 8 p.m when the police officials were on patrol duty they saw the accused hiding on seeing the jeep and therefore he was apprehended and searched and he was found to be in possession of 375 ml of illicit arrack in a bottle. It was taken possession of and sampled and sealed and thereafter proceeded against. The material evidence in this matter consists of the oral testimony of PW2, PW6 and PW7. PW2 is a driver of the jeep who had accompanied the Sub Inspector of Police on the relevant date. He had deposed before Court that while they were proceeding they were able to see the accused and on seeing the red light there was perplexion on his face which made the police officials stop the vehicle and examine him and on examination it was found that he had a 375 ml bottle and it was illicit arrack. It was sampled and sealed in the very same place. He had been cross-examined at length and except for minor contradiction regarding the distance etc. nothing is brought out to discredit his evidence. ## **Crl. Appeal NO. 404 OF 2003** -:3:- 4. PW6 is the constable who had also accompanied the Sub Inspector and he had also spoken in the same line with PW2. He had also spoken about the apprehension, arrest, sampling and sealing. PW7 is the Sub Inspector of Police who had conducted the search of the body of the accused. He had also deposed about the way in which the accused was found and the apprehension, arrest and also taking the bottle in his custody and sealing it. According to him the bottle was taken out and on examination it was found to contain 375 ml. of illicit arrack. In the cross-examination also nothing is bought out in favour of the accused. Therefore the evidence of PWs.2, 6 and 7 would show that the accused was found in possession of a bottle which was illicit arrack and that it has been sampled. The other formalities like sending it for chemical analysis and production of material objects are all done within the stipulated time, i.e. on the very same day the bottle has been produced and it had been sent for chemical analysis and the chemical analysis report would reveal that the seal on the bottles were in tact and it had tallied with the sample seal provided. The contents in the bottle is ethyl alcohol and the sample contained 37.82% by volume of ethyl ## **Crl. Appeal NO. 404 OF 2003** -:4:- alcohol. The word 'arrack' is having an exclusive definition under the provisions of the Abkari Act and the present liquid comes within that exclusive definition. 5. Learned counsel would then contend that the offence u/s 55(a) of the Abkari Act will not lie. I also agree with the learned counsel for the reason that to attract S.55(a) there must be export, import, transport or possession and a Division Bench of this Court in the decision reported in _**2007 (1) KLT 845 Mohanan v. State of Kerala**_ has held therein that 55(a) is applicable only when persons illegally imports or transport liquor or in possession of liquor while illegally importing. Here there is no such case and therefore S.55(a) will not lie. 6. But it has to be stated that the accused was found in possession of liquor which was prohibited and was possessed without any authority and therefore it would come under S.58 of the Act. Whether it will cause any injustice to the accused was considered by a learned Judge of this Court in the decision reported in _**(2007 (1) KLN SN 42 case No.58 (Shaji v. State of Kerala).**_ It was a case where the Court framed charge u/s 55(a) of the Abkari Act and found the ## **Crl. Appeal NO. 404 OF 2003** -:5:- accused guilty and convicted him under S.58 of the Abkari Act. This Court also held that unless accused is prejudiced conviction shall not be interfered with. Therefore I find the accused is liable to be convicted u/s 58 of the Abkari Act for the reason he was consciously in possession of the illicit arrack which is against the provisions of law. 7. Now, let us turn to the question of sentence. The quantity involved is infinitely negligent. He had submitted before the Court that he is a married man with two children and he has undergone treatment for kidney ailment and that he cannot subsist without a proper treatment. Certainly a person suffering ailment to the kidney will be subject to much difficulty and excess physical exertion will affect his life. He was in jail from 25.11.1998 to 9.12.1998 and I feel the sentence of imprisonment for that period will be sufficient. There is no other remedy left for the Court but to impose a fine of Rs.1,00,000/-. But considering his very bad physical condition as submitted by the accused I reduce the default sentence to 15 days. ## **Crl. Appeal NO. 404 OF 2003** ## -:6:- In the result the Crl.Appeal is disposed of as follows: (1) The conviction and sentence passed u/s 55(a) is set aside and the accused is found guilty u/s 58 of the Abkari Act. (2) The sentenced of imprisonment for the offence is restricted to the period which he had undergone from 25.11.1998 to 9.12.1998 and he is liable to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for a period of 15 days. He is entitled to set off which has been taken note of by this Court while awarding punishment. ## **M.N. KRISHNAN, JUDGE.** ul/- ## **Crl. Appeal NO. 404 OF 2003** -:7:- **M.N. KRISHNAN, J. = = = = = = = = = = Crl.A. No. 404 OF 2003 = = = = = = = = = = =** **J U D G M E N T** **15[th] July, 2009**